BRUCE v. DISTRICT OF COLUMBIA

Presently before the Court is the motion of defendant District
of Columbia ("the District") for summary judgment addressing the
remaining claims brought by plaintiffs Bruce and Mary Ann Feirson
pursuant to the common law of the District of Columbia.
Previously, the Court granted summary judgment for the District
as to Bruce Feirson's claims under 42 U.S.C. § 1983. See
Feirson v. District of Columbia, Civil Action No. 01-0905
(D.D.C. Mar. 30, 2004) (memorandum opinion) ("Feirson Mem.
Op.").*fn1 The District now moves for summary judgment as to
all remaining claims  specifically, Bruce Feirson's intentional
tort claims and Mary Ann Feirson's loss of consortium claim. For
the reasons that follow, the Court will grant the District's
motion.

BACKGROUND

This case arises out of Sgt. Bruce Feirson's participation in
an Armament Systems Proficiency ("ASP") training session conducted by the
Metropolitan Police Department ("MPD") on April 27, 2000.
Feirson Mem. Op. at 1. The ASP training, which trains MPD
officers in the use of the ASP baton, includes classroom
instruction and testing, physical conditioning exercises and
drills, and a combat segment. Id. at 1-2. The combat segment
requires a trainee to engage his training instructor (also known
as an "assault officer") in physical combat. Id. at 2. The
training instructor plays the role of a violent assailant, and
the trainee, in full protective gear, is expected to defend
against the instructor's aggressive advances by using the ASP
baton. Id. Sgt. Feirson was injured while participating in the
combat segment of the ASP program. Id.

Plaintiffs filed suit on April 26, 2001. Id. In relevant
part, the complaint includes two counts brought by Sgt. Feirson
against the District. See Compl. at 7-9. Count I seeks relief
under § 1983 and alleges that the District violated Sgt.
Feirson's constitutional rights, privileges, and immunities under
the Fourth, Fifth, and Fourteenth Amendments by intentionally
causing the use of excessive and objectively unreasonable force
against him. Id. at 7-8. Count II alleges that the District is
liable for Sgt. Feirson's injuries and resultant damages "[u]nder
the statutes, common law and/or case law of the District of
Columbia, or otherwise applicable law." Id. at 8-9.*fn2
Sgt. Feirson's wife, Mary Ann Feirson, brings Count III against
the District for the loss of her husband's consortium. Id. at
9.

On March 30, 2004, the Court dismissed Count I of the
complaint, as well as plaintiffs' claims for punitive damages,
pursuant to the District's motion for summary judgment. See Feirson Mem. Op. at 7-17. Summary judgment was, at that time,
denied with respect to Counts II and III because the Court found
that the notice requirements of D.C. CODE ANN. § 12-309 were
satisfied. See id. at 3-7. The District has now renewed its
motion for summary judgment on Count II, arguing that
notwithstanding proper notice under § 12-309, the Police and
Firefighters Retirement and Disability Act ("PFRDA"), D.C. CODE
ANN. §§ 5-701 et seq., entirely forecloses Sgt. Feirson from
recovering from the District for his injuries. See Def.'s
Suppl. Mem. Supp. Mot. for Summ. J. at 1. Because Mary Ann
Feirson's claim for loss of consortium is dependent upon and
derivative of the District's liability on Count II, the District
submits that summary judgment must also be granted on Count III.
Id. at 8. In response, the Feirsons contend that PFRDA only
forecloses liability for injuries caused by unintentional
tortious conduct. See Pl.'s Mem. Opp'n at 3-4. According to the
Feirsons, case law permits recovery for injuries caused by the
District's intentional tortious conduct, and they have adequately
pleaded and demonstrated intentional conduct here. See id.

ANALYSIS

PFRDA is the worker's compensation scheme established for
uniformed employees of the District of Columbia who are injured
while performing their duties as police officers or firefighters.
See Brown v. Jefferson, 451 A.2d 74, 77 (D.C. 1982). The
statute is "<generally viewed as remedial legislation intended
to advance a social policy which favors limiting the liability of
[the District]. . . .'" Ray v. Lewis, 535 A.2d 868, 870 (D.C.
1987) (quoting Brown, 451 A.2d at 77). Thus, courts have
interpreted PFRDA as the exclusive remedy against the District
when it applies. Lewis v. District of Columbia, 499 A.2d 911,
915 (D.C. 1985). In Mayberry v. Dukes, 742 A.2d 448 (D.C.
1999), the District of Columbia Court of Appeals held that this "sole remedy" rule does not apply to suits brought
against a co-employee for injuries that result from that
co-employee's intentional tortious conduct. See Mayberry,
742 A.2d at 451-52; see also Phillips v. District of Columbia,
257 F. Supp. 2d 69, 84 (D.D.C. 2003). The Mayberry court was
reluctant to interpret PFRDA as foreclosing common law remedies
that are not contemplated by the statute's text, legislative
history, or underlying policy, or by the case law that it has
engendered. See Mayberry, 742 A.2d at 451-52. Mayberry has
never been applied against the District, and the analysis in that
decision is tailored to suits against co-employees. See
Phillips, 257 F. Supp. 2d at 84.

Unlike the Mayberry court, this Court is not asked to extend
PFRDA beyond its reasonable boundaries. Plaintiffs have, in this
case, filed a suit against the District. By its very nature,
PFRDA contemplates and addresses this type of suit. Moreover,
legislative intent appears to support the conclusion that when an
injured employee (like Sgt. Feirson) sues the District for
injuries incurred while performing duties as a police officer or
firefighter, PFRDA is the sole avenue for recovery. Congress
specifically carved out uniformed personnel as a class of
employees not to be encompassed by the more generally applicable
Worker's Compensation Act, choosing instead to address the needs
of these employees through PFRDA. This indicates an intent for
PFRDA, when applicable, to constitute the solitary vehicle for
redress. See Lewis, 499 A.2d at 913. Mayberry does not
counsel to the contrary. That decision was based on the
presumption that "<the legislature does not intend to take away
common law rights [concerning the availability of tort suits
against a co-employee for intentional conduct] unless that
purpose is clearly expressed in the statute.'" Mayberry,
742 A.2d at 451 (quoting Newman v. District of Columbia,
518 A.2d 698, 703 (D.C. 1986)). In the present case, however, a different presumption applies:

When Congress has established a scheme of
compensation to provide a remedy for personal
injuries suffered in the course of . . . employment,
the compensation system is presumed to be the
exclusive means of redress against the government
for all persons eligible for the system's benefits,
even if Congress has not stated that the
compensation scheme should be exclusive.

Lewis, 499 A. 2d at 912-13 (emphasis added).

Indeed, courts have long held that PFRDA is the exclusive
remedy in cases brought against the District. See, e.g.,
Phillips, 257 F. Supp. 2d at 83-84 (holding that PFRDA
forecloses actions against the District based upon injuries
sustained as the result of an intentional tort during the course
of performing duties as a firefighter); Lewis,
499 A.2d at 912-13, 915 (holding that PFRDA forecloses third-party actions
against the District based upon injuries sustained during the
course of performing duties as a police officer); Ray,
535 A.2d at 871 (holding that PFRDA forecloses actions against the
District based upon injuries sustained as a result of medical
treatment for a condition suffered during the course of
performing duties as a firefighter). Nothing in the text of PFRDA
or its legislative history supports a different outcome here, and
no case has ever created an exception to the sole remedy rule
when the District is named as the defendant.

Hence, the limited exception for injuries caused by intentional
tortious conduct may not be invoked when the District, as opposed
to a co-employee, is the defendant. See Phillips,
257 F. Supp. 2d at 84. Accordingly, Count II cannot be sustained.
Because the loss of consortium claim in Count III is dependent
upon the District's liability under Count II, Count III also
lacks a legal basis.*fn3

CONCLUSION

For the foregoing reasons, the District's motion for summary
judgment on Counts II and III will be granted and plaintiffs'
action against the District will be dismissed. ...

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